Thе manufacturer of a hair remedy who was ordered by the Federal Trade Commission to cease and desist from making certain advertising claims which the Cоmmission found false and misleading seeks review of the order. He raises a single issue, whether he was arbitrarily and capriciously restricted in cross-examination of Government witnesses before the hearing examiner. Violation of the due process clause of the Fifth Amendment is asserted.
The Federal Trade Commission’s complaint charged William T. Loesch, an individual doing business as Loesch Hair Experts, 1 with false advertising. The Commission offered in evidence his advеrtisements, which, in summary, represented that his preparation, if used in the suggested manner, would kill bacteria beneath the scalp; eliminate dandruff; cure аll local scalp diseases; stop exces - give hair fall; prevent all types of baldness, including “male-pattern-type” baldness ; and induce new hаir to grow and old hair to become thicker. Loesch also held himself out as a “trichologist.”
To refute these several claims, the Government offеred the testimony of three medical experts, Dr. Behrman, Dr. Rostenberg, and Dr. Rattner. Dr. Behr- *884 man, the first of the three to testify, was examined in New York City on September 13, 1955. At the conclusion of his testimony, the hearings recessed until September 15, so that, according to Loesch, the Government attorney would have a day's interval to confer with his medical experts in Chicago, before resuming hearings there.
In Chicago, on September 15, Dr. Adolph Rostenberg, Jr., a dermatolоgist and teacher at the University of Illinois, was the Government’s witness. In the course of cross-examination, Loesch’s counsel asked him whether he talked tо the Government lawyer before taking the stand. The doctor said that he had, and the Government counsel conceded it. Loesch’s lawyer then began to question the doctor as to whether the Government’s lawyer had told him of Dr. Behr-man’s classification of baldness. Dr. Rostenberg replied that “we didn’t go into аny explicit testimony that Dr. Behr-man did give.” The witness stated that the Government lawyer had asked him some of the same questions as in direct examination.
The heаring examiner then turning to Loesch’s counsel, said “You were intimating that Mr. Callaway [the Government attorney] told him what Dr. Behrman testified, so he testified the same. As а matter of fact, he didn’t testify the same. * * * You are trying to smear the witness and Mr. Callaway by asking him what Mr. Callaway told him to testify. I don’t like things like that. We deal with men who cаn’t be told things like that. Even if Mr. Calla-way was that type of lawyer, which he isn’t, from my experience, we don’t do business that way * *
When Dr. Rattner, the third Government expert, tеstified the next day, the following colloquy occurred between Loesch’s lawyer and the examiner:
“Q. Now, your Honor, I don’t care to go into this about with whоm the doctor talked and preparation for this hearing. If your rulings will be the same I will let the record show it.
“Hearing Examiner: Yes.
“Mr. Welling: Could the record show that the question would be overruled if I asked who the doctor talked with in preparation for this hearing ?
“Hearing Examiner: No, I have no objection to the doctor testifying as to whеther he talked with Mr. Callaway before he took the stand. I assume that any. lawyer, when he puts a witness of this type on the stand, talks to him before he puts him on thе stand. He wouldn’t be exercising proper judgment if he didn’t do so, so I certainly don’t want, by virtue of that, to refuse permission or draw any — don’t want the Commission to draw аny unfair or improper conclusions from the fact that he has talked to him.
“Mr. Welling: Well, Sir, if there is going to be the same ruling as yesterday—
“Hearing Examiner: Yes, my ruling would bе the same on that type of question.”
Loesch’s counsel did not further press this line of interrogation, or indicate for the record what he expected to elicit from the witness. In the argument of the appeal he conceded that he had no particular point in mind. He insisted, however, that in his exрerience witnesses, thus questioned, often are disconcerted and the effect of their testimony is diminished.
Extensive cross-examination of each оf the three Government experts on the subject of the direct testimony was in fact permitted. Further cross-examination to elicit whether the witness had, аt the interview with the Government’s counsel or on other occasions, expressed views in conflict with his direct testimony, was not specifically preсluded. If the cross-examiner intended to probe this possibility, he did not make it clear that this was his purpose, and that his aim was not merely to harass the witness. His explanation on appeal is that the hearing examiner’s rebuke discouraged *885 further pursuit of the matter, and that he was forced to abandon this phase and leave unclear the purpose of the challenged question. Reading the record, however, we are not left with the impression that counsel was actually intimidated.
The hearing examiner might well have refrained from criticizing the lawyer. Nevertheless, this brush between examiner and counsеl pertained to a minor incident in a vigorously contested trial, which had no material effect and could not have prejudiced Loesch’s case.
The contention made for Loesch is that by cutting off cross-examination, the hearing officer violated the rule of the Jencks case, Jencks v. United States, 1957,
Moreover, apart from the technical correctness of the hearing examiner’s ruling, in appraising the practical consequences of the exclusion of the testimony, it must be realized that there is a difference bеtween confronting a witness with an earlier written statement, which it is too late for him to alter, and asking him what he said orally on a former occasion in the hope of developing a conflict with his present testimony. The hope, in the circumstances shown, is too remote and insubstantial to be made thе foundation for a claim of prejudice in the barring of the inquiry, and certainly nothing resembling denial of due process appears.
As Mr. Justice Black, speaking for a unanimous Court in Reilly v. Pinkus, 1949,
Affirmed and enforced.
Notes
. William B. Zimmerman, Loesch’s advertising agent, was also a party to the proceedings below, but he did not appeal from the hearing examiner’s initial decision and is not a petitioner here.